McCutcheon v. State , 1979 Wyo. LEXIS 500 ( 1979 )

ROSE, Justice.

Appellant, John McCutcheon, was charged with burglarizing the Roadrunner Cafe in Casper, Wyoming, on September 7, 1978, in violation of § 6-7 — 201(a)(i), W.S. 1977, with burglarizing the garage of Cas-per policeman Bill Millay on September 3, 1978, also in violation of § 6-7-201(a)(i), W.S.1977, and with concealing stolen goods in violation of § 6-7-301, W.S.1977.

The Roadrunner Cafe burglary charge (District Court Criminal Action No. 7714), and the Millay garage burglary and concealing stolen goods charges (District Court Criminal Action No. 7738) were consolidated for trial.

Appellant’s counsel moved to suppress evidence allegedly obtained pursuant to illegal searches and seizures under the Fourth Amendment of the Constitution of the United States, and Article 1, Section 4, of the Wyoming Constitution. That motion was heard and denied. The evidence was received at trial, and appellant was convicted of two counts of burglary and sentenced to two concurrent terms of five to eight years in the Wyoming State Penitentiary.

This appeal addresses the trial court’s denial of appellant’s motions to suppress illegally seized evidence. The evidence appellant objected to at trial and objects to on appeal includes all the evidence received which relates to the Millay burglary, Criminal Action No. 7738, together with the admission in Criminal Action No. 7714 of photographic exhibits of food items seized while officers were acting under the authority of a search warrant.

We will affirm.

At about noon on September 4, 1978, Casper policeman Bill Millay discovered that his garage had been broken into and several items, including a bench grinder, a car stereo and tape, two radios, and two car speakers had been taken sometime the previous day. On September 6, 1978, one of Millay’s neighbors told him that he had seen “four or five kids” in a black Pontiac or Oldsmobile with a square taillight and no license plates, and that he heard one of the “kids” say, “Man, did we hit it big, we found a garage and its [sic] got tape players and everything in it.”

On the following dáy, September 7, 1978, Millay searched for a car matching this description. About noon, he observed and followed a black Pontiac proceeding along a Casper street and “crept up on his bumper and noticed a set of speakers in the back window similar to mine.” Millay traced the temporary license sticker on the car and found that it belonged to the appellant, John McCutcheon. Officer Millay then informed Casper Police Department Investigator John Snell “that he had seen some speakers in the rear deck of a vehicle” registered to John McCutcheon of 1960 Johnstone Road.

John McCutcheon and his father, Joe McCutcheon, were working on John’s black Pontiac that same afternoon of September 7, 1978, and, when the McCutcheons, together with April Garner, left the vehicle at about 6:30 p. m. to go to a store and buy a set of brakes, the automobile was parked in the driveway at 1960 Johnstone Road.

Snell testified that, “In an attempt to obtain further information,” he and Investigator James H. Cooper arrived at 1960 Johnstone Road at about 7:00 p. m., and walked onto the McCutcheon premises.

The appellee describes what happened next as follows:

“ . . . Officer Snell proceeded up the driveway of the residence to ascertain whether anyone was at home. Enroute, he observed the speakers through the back windows of the black Pontiac, and the tape deck through the side windows . . "

The appellant describes the happening in this manner:

“ . . . They [Investigators Snell and Cooper] walked onto the McCutcheon premises, looked into the vehicle parked in the driveway, and saw a car stereo . and two speakers ... in the vehicle . . . ”¹

Appellant, his father, and April Garner returned shortly after the arrival of Snell and Cooper, and at about the same time Police Officers Glenn Cashel and Dan Hodge appeared at 1960 Johnstone Road. Officer Snell testified that appellant gave him permission to enter and examine the items in the car after he, Snell, had informed appellant of his constitutional rights, including the admonition that he did not have to permit the police to search the vehicle. Shortly thereafter, appellant signed a written permission for the officer to search the residence.

Upon receiving appellant’s permission, Investigator Snell entered the vehicle, inspected and tentatively identified the speakers and car stereo, and called Officer Millay to come to 1960 Johnstone Road to identify those items. Millay entered the vehicle “after I found out there had been a permission to search the vehicle” and examined and identified the car stereo and speakers as those which were taken from his garage.

The trial court denied appellant’s motions to suppress the admission of the car stereo and speakers at trial on the grounds that the evidence was in plain view and that appellant had voluntarily consented to a search of the vehicle.

. The remainder of the evidence received was obtained pursuant to a search warrant issued by a justice of the peace September 7, 1978. The affidavit in support of that search warrant was signed and sworn to by Investigator Dan Hodge and stated the following:

“On 9-7-78, Investigator of the Casper Police Dept, located an eight track tape player and two speakers in the vehicle of John McCutheon [sic] at 1960 Johnston [sic] Road, which were taken in a Burglary on 9-3-78. Investigators talked to April Garner who was with McCutheon [sic] and she stated to Officers that she was present during the burglary on 9-3-78 and that two of the items taken in the burglary are located at 528 West 9th,Apt9, [sic] Casper, Wy. She stated that on 9-7-78 she observed the portable eight track tape player, Montgomery Wards [sic] brand, which was taken in the Burglary, at that residence. She also stated that within the last five days she also observed the Shop Mate Grinder which was on a shelf in the closet at 528 9th, Apt.9 This Affiant wishes a night time warrant on the grounds that any delay in searching 528 West 9th Apt.9 might enable occupants to destroy or get rid of these items taken in the burglary when the occupants find out John McCu-thion [sic] is in custody of the Casper Police Dept.”

By motions to suppress, filed in both Criminal Actions Nos. 7738 and 7714, appellant alleged that the search warrant was invalid and that all evidence seized by its authority should be suppressed. The motions were denied.

The appellant delineates the issues for our decision as follows:

“1. Does the plain view doctrine excuse the search of Appellant’s vehicle?

“2. Does a police Officer ‘search’ a vehicle when he walks up a private driveway, peers into the vehicle, and visually examines the contents thereof?

“3. Does a prior illegal search render a subsequent consent to a further search involuntary?

“4. If the search of Appellant’s vehicle was illegal, was a subsequent apartment search conducted pursuant to a warrant also illegal as an exploitation of the prior illegal search?

“5. Will this Court adopt a ‘citizen informant rule,’ and if so, will the Court require an affidavit supporting a search warrant to. affirmatively establish the status of an informant as a ‘citizen informant’?”

Response to Issues Numbers 1 and 2

We respond to issues 1 and 2 by holding that the visual observation of the evidentia-ry items while the vehicle was in the driveway was not a constitutional search and therefore not prohibited. In so holding, we view the evidence and reasonable inferences to be drawn therefrom most favorably to the successful party. Johnson v. State, Wyo., 562 P.2d 1294, 1297 (1977), quoting from Blakely v. State, Wyo., 542 P.2d 857, 863 (1975), and Harris v. State, Wyo., 487 P.2d 800, 801 (1971), and citing, in further support, Bentley v. State, Wyo., 502 P.2d 203, 208 (1972).

The United States Supreme Court, other state courts, and this court have held that a police officer’s observation of that which is in plain view from a position where he has a right to be is subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, rehearing denied 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). See, also, Lorenzana v. Superior Court of Los Angeles County, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 (1973), rehearing denied. We said in Alcala v. State, Wyo., 487 P.2d 448, 453 (1971):

“We consider it well settled that objects falling into the plain view of an officer who has a right to be where he is are subject to seizure and may be introduced in evidence. Belondon v. City of Casper, Wyo., 456 P.2d 238, 241; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067; State v. McMillan, 206 Kan. 3, 476 P.2d 612, 616.”,

and footnoted still other citations for this proposition, which citations are: State v. Camper, Mo., 353 S.W.2d 676, 679; People v. Manzi, 38 Misc.2d 114, 237 N.Y.S.2d 738, 741; People v. Willard, 238 Cal.App.2d 292, 47 Cal.Rptr. 734, 743; and State v. Allred, 16 Utah 2d 41, 395 P.2d 535, 537.

Fully developed, the elements required for plain-view justification, according to Coolidge, supra, are:

1. The officers’ presence must be proper.

2. The items observed must appear to the officer to be possible evidence.

3. Attention must be paid to Justice Stewart’s plurality expression that the “plain view” doctrine is applicable only to the inadvertent discovery of incriminating evidence.²

The Officers’ Presence Must Be Proper

Responding to the first Coolidge plain-view justification test, we find that Officer Snell’s presence was proper in that he was in a place where he had a right to be and where the defendant had no reasonable expectation of privacy when Snell observed the speakers and the tape deck in the automobile as it was parked in the defendant’s driveway. See, Croker v. State, Wyo., 477 P.2d 122 (1970). In support of this conclusion, we rely upon the following testimony: Snell went to the property without a warrant and was “going to the house to ascertain whether anybody was at the residence . . . in an attempt to obtain further information.” (See, Fn. 1) Admittedly, it is not crystal clear from the record just exactly where in the driveway the vehicle was parked and where the house was with respect to the driveway and the automobile, but we must, nonetheless, give the State the benefit of the favorable facts and all reasonable inferences to be drawn therefrom (Johnson; Blakely; Harris and Bentley, supra). Through the application of this rule, we think we can fairly read the record to say that Officer Snell was walking up the driveway upon which the car was parked and it was necessary to pass the automobile on his way to the house to speak with the occupant for the purpose of gaining additional information about the burglaries. While in pursuit of this purpose, the officer observed the speakers and tape deck through the windows of the vehicle. (See, fn. 1.) If we are warranted in embracing these facts and their attendant inferences, it follows that Snell was in a place where he had a right to be when he looked into the automobile and saw the evidentiary items. People v. King, 5 Cal.App.3d 724, 85 Cal.Rptr. 461 (1970); and Lorenzana, supra. Furthermore, under these facts, Snell was in a place where the defendant had no reasonable expectation of privacy.³

The California Appellate Court found there was no reasonable expectation of privacy which would defeat the plain-sight doctrine where the officer stood on the steps leading to the side door through which illegal activity was observed. People v. Willard, 238 Cal.App.2d 292, 47 Cal.Rptr. 734 (1965) — nor was there reasonable expectation of privacy where the officers entered upon a common passageway bordering defendant’s apartment where the court said they had a right to be and from there observed contraband through the curtains. People v. Berutko, 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721 (1969). The same was true where, from the back yard, where deliverymen and others come, the officer observed a plant which proved later to be marihuana.

One commentator has described our feelings on the subject rather vividly:

“It is a fair generalization that if a law enforcement officer is able, by the use of his natural senses, to discover what is inside a vehicle while ‘standing in a place where he had a right to be’ this discovery does not constitute a Fourth Amendment search.” LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Sec. 2.5(c), p. 355.

To Invoke The Plain-view Doctrine, The Items Viewed Must Appear To Be Possible Evidence

In further compliance with the requirements of Coolidge, the record clearly indicates the officers’ recognition of the tape deck and speakers as possible evidence. Officer Snell recognized the brand names of these items and Officer Cooper stated that he and Snell noted them as being evidentia-ry. The officers had been alerted to these items by Officer Millay, and, moreover, Officer Cooper testified that he had driven around in the police car where the items had been installed prior to being removed and placed in Millay’s garage.

The Stewart Inadvertent-discovery Rule

In Coolidge, supra, Associate Justice Stewart, writing for a plurality, was of the opinion that the “plain view” doctrine is applicable in circumstances where the discovery of incriminating evidence is inadvertent.

In North v. Superior Court of Riverside County, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, 1309 (1972), the California Supreme Court said:

“It follows that the ‘plain view’ issue raised by the plurality opinion was in fact considered by an equally divided court, and hence was not actually decided in Coolidge. (See People v. McKinnon, supra, 7 Cal.3d [899] at p. 911, 103 Cal.Rptr. [897] at p. 905, 500 P.2d [1097] at p. 2005.) As stated in McKinnon, involving a different aspect of the Coolidge plurality opinion, ‘under settled doctrine, the judgment of an equally divided United States Supreme Court “is without force as precedent.” [Citation.] . . .’”

Even so — it is well to point out here that the viewing of the articles in question through the glass in the automobile did in fact conform to Justice Stewart’s inadvertence test for identifying “plain view.”

After pointing to several situations in which the “plain view” doctrine is applicable, Justice Stewart says:

“. . . Finally, the ‘plain view’ doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684; Ker v. California, 374 U.S. [23] at 43, 83 S.Ct. [1623] at 1635, 10 L.Ed.2d 726. Cf. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312.” Coolidge, supra, 403 U.S. at 466, 91 S.Ct. at 2038.

While we can conceive of cases in which inadvertence would be an unnecessary requirement because the accused had left the evidence at some place where intrusion was necessary and where the accused had no claim to any right of privacy, this case is not one of those.

The cited cases seem to have in common the fact that the officer must have a prior justification for the intrusion, during which he comes across the evidence incriminating the accused.

Does that factor appear here? We think it does. The evidence which the judge could, and we assume did, believe was that Officer Snell was proceeding along the driveway on his way to the house of McCut-cheon to “ascertain whether anybody was at the residence . . . in an attempt to obtain further information,” (Snell’s testimony, supra, fn. 1) when he passed the car and saw the incriminating evidence through the vehicle’s window and in plain view. The “further information” which the officer was seeking would have been such information as was in addition to that which he had previously received from Officer Millay. Therefore, Officer Snell was not searching for evidence as he proceeded up the driveway to the house, but was, instead, on his way to confront the occupants in the course of his investigation when, in passing the vehicle, he inadvertently came across the incriminating objects at a place where he had a right to be and where the defendant had no reasonable expectation of privacy. This conclusion assumes facts sufficient to support the assumption that the officers did not know with certainty the location of the property when they walked up the driveway toward the McCutcheon house. We find such facts to be supported by the record.

We conclude, then, that all of the Coolidge elements required for plain-view justification are present here and that the viewing of the evidentiary items in McCut-cheon’s automobile without a warrant, which led the officers to request permission to search the vehicle, was justified and did not constitute a Fourth Amendment search.

Response To Issues Numbers 3 and 4

We respond summarily to issues numbered 3 and 4, supra, because those questions make an assumption which we reject. This assumption is that the search (Snell’s looking into the automobile) was illegal. But we hold that his viewing the evidentia-ry articles in this manner did not constitute a constitutional search and was, thus, not “illegal.” Therefore, this conclusion disposes of issues 3 and 4.

Response To Issue Number 5, i. e., The Alleged Insufficiency of The Probable-cause Affidavit

Lastly, the defendant argues that the affidavit supporting the search warrant for defendant's sister's apartment was insufficient to establish probable cause in that the reliability of hearsay information contained therein was not established.

We said in Croker, supra, at 477 P.2d 127:

“. . . We are cognizant of course of fairly recent holdings of the United States Supreme Court that a finding of probable cause by the justice of the peace can be satisfied by ‘hearsay information’ providing the affidavit sets forth sufficient of the ‘ “underlying circumstances” necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were.’ Spineili v. United States, 393 U.S. 410, 89 S.Ct. 584, 587, 21 L.Ed.2d 637. In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, the court, after first pointing out that even though a warrant may be issued only upon a finding of probable cause, also pointed out that the term meant something less than evidence which would justify condemnation and further that such finding might ‘rest upon evidence which is not legally competent in a criminal trial.’ The court then went on to say, 85 S.Ct. at 746, that such affidavits ‘must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion’ and further that:

“ ‘ * * * Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

“ ‘This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based. * *

The affidavit with which we are concerned in the instant matter is set out verbatim, supra, and shows that the informant was an eyewitness to the burglary and to the place where the items which were taken were located. In urging the insufficiency of the affidavit, the defendant admits that an affidavit supporting a search warrant may be based on hearsay where there is “a substantial basis for crediting the hearsay,” Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (a holding that we recognized and adopted in Deeter v. State, Wyo., 500 P.2d 68 (1972)). He argues that, in this case, there was no such credibility showing. The argument is:

“. . . This [credibility] basis can be established by affidavits which disclose to the magistrate underlying circumstances that (1) caused the informant to conclude that the objects of the search are on the premises to be searched, and (2) caused the affiant to believe the informant is credible or his information is reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).”,

and the magistrate’s reliance on the hearsay of April Garner does not satisfy the Aguilar tests. We think it does. We note, parenthetically, that we rejected this same argument in Deeter, supra.

We said in Deeter, supra, at 500 P.2d 70, and also repeated in Smith v. State, Wyo., 557 P.2d 130 (1976):

“. . . [Affidavits of probable cause for search are to be tested by much less rigorous standards than those governing admissibility of evidence at the trial and issuing magistrates are not to be confined by niggardly limitations, Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637, ...”

The affidavit of Officer Hodge reflects sufficient “‘underlying circumstances’ necessary to enable the magistrate independently to judge the validity of the informant’s conclusion,” Spinelli v. United States, supra. The affidavit informs the magistrate that the eight-track tape player and speakers taken in the burglary were recovered in McCutcheon’s automobile at 1960 Johnstone Road at a time when April Garner appeared with McCuteheon and his father. That backdrop against which the hearsay statements of April Garner were said by the affiant to have been made was more than sufficient to satisfy the requirements of Spinelli, supra; Jones v. United States, supra; and Aguilar, supra.

We do not find it necessary to probe further into the ramifications of the so-called “citizen-informant” rule. The affidavit was sufficient for the reasons stated.

There being no other issues for decision, the judgment of the court is affirmed.

1 . Because the circumstances under which the officers observed the items in the vehicle are important to the validity of the conclusion that we reach in this opinion, the pertinent testimony is set out as follows:

“[Snell testified on direct examination at one point in the proceeding:]

“Q. Could you tell us what you observed and where you observed it?

“A. I observed a, I believe, a K-Mart eight track tape deck and a set of speakers in the back of a — or in a white over black Pontiac vehicle that had a temporary sticker in it and parked in the driveway at 1960 Johnstone Road.

“Q. And was there anything obstructing your view of those items when you saw them, or could you just tell us, describe to us how it was that you saw them?

“A. 1 could see the speakers, which were on the rear deck of the vehicle. I could see them both through the back windows. I could see the tape deck, which was mounted to the left of the steering wheel, beneath the dashboard. I could see that from the driver’s side window and also from the passenger’s side window.

“Q. Would it be fair to say those were open to anyone, in plain view that was outside the vehicle?

“A. They were.”

When the subject was inquired into again on direct examination, Officer Snell testified:

“A. On September 7th, I received information from Bill Millay, who is the complainant in this case—

“Q. Would that be the same Bill Millay who testified here earlier today?

“A. It was. And he informed me that he had seen some speakers in the rear deck of a vehicle, it was a black over white Pontiac that had temporary sticker in it and he further informed me that he had contacted the office in Cheyenne and found out that, who this vehicle was registered to, that it was registered to John McCutcheon of 1960 John-stone Road, and that evening other officers and I went out to 1960 Johnstone Road in an attempt to obtain further information.

“Q. And could you tell us what happened or what you observed upon arriving at 1960 Johnstone Road?

“A. Upon arriving at that time I observed a white over black Pontiac, I believe it is a Tempest, in the driveway of 1960 Johnstone Road. The vehicle, the back of the vehicle was on jacks and, I believe, the trunk lid was open. As I was going to the house to ascertain whether anybody was at the residence or not a vehicle, another vehicle pulled into the driveway.

“Q. Did you ever make it up to the house?

“A. I don’t believe I did at that time.”

Officer Cooper, who accompanied Snell to 1960 Johnstone Road, testified on direct:

“Q. What did you do at the time when you got to 1960 Johnstone?

“A. We went to, we looked at the vehicle, this Pontiac that was in the yard and looked through the window at the tape deck, that was in the car, plus the speakers that were mounted in the rear deck of the vehicle, and then we tried to contact someone at the house by going to the door and ringing the doorbell.”

2 . It is not possible to describe the Stewart pronouncement on inadvertent discovery as a rule of law because the Associate Justice was unable to obtain a majority of the court for this proposition.

3 . This conclusion serves to distinguish the case of United States v. Bradshaw, 4 Cir., 490 F.2d 1097 (1974), cited by appellant to support his expectation-of-privacy argument. Bradshaw facts indicated a ‘search’ because of the peering through a crack in the rear doors of a vehicle which were closed at the time, thereby raising some expectation of privacy. Clearly, the transparent windows of appellant McCut-cheon’s vehicle do not raise the expectation of privacy that closed, nonwindowed doors did in Bradshaw.